Can the Congressional Cannabis Caucus Win the War Over Weed?

In spite of the best efforts of marijuana’s opponents, the percentage of Americans who support legalizing marijuana continues to climb. A new Quinnipiac University poll shows (PDF) that a full 93 percent of voters now support legalizing medical marijuana. Even more remarkable, 71 percent of Americans are opposed to a federal crackdown on the states that have legalized recreational marijuana. Only 36 percent of Republicans support a federal crackdown.

Even with the strong, broad, and rising support for marijuana legalization, the Trump administration continues to resist. In fact, some officials within the government are reportedly suggesting that a federal crackdown may be on the horizon. White House Press Secretary Sean Spicer, for example, said that he believed that there would be “greater enforcement” against the states that have legalized recreational marijuana.

Attorney General Jeff Sessions has also recently raised concerns across the cannabis community. Speaking at the National Association of Attorneys General, Sessions reiterated his opposition, saying that he was “dubious” about marijuana. “I’m not sure we’re going to be a better, healthier nation if we have marijuana being sold at every corner grocery store,” he said.

“I’m definitely not a fan of expanded use of marijuana,” Sessions continued. “I would just say,” he ominously added, “it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not.”

The Dubiousness of a Federal Cannabis Crackdown

Despite the usual bluster and typical tough-guy tropes against cannabis, the reality is that a federal crackdown is unlikely. This doesn’t mean that there won’t be any DEA raids against recreational marijuana businesses (the Rohrabacher-Farr amendment currently protects only medical marijuana businesses). The DEA conducted selective raids under Obama and there’s no reason to think they will stop now under Trump. In fact, the famous Cole memo outlines a number of strict guidelines that must be followed to avoid incurring the wrath of the DEA. It’s not too difficult to imagine that at least a handful of businesses will run afoul of one or more of these guidelines.

Nevertheless, the status quo is the most likely scenario moving forward—here’s why:

First, the Trump administration is targeting cartels not commerce. There’s been a lot of fear around recent comments from officials within the Trump administration, notably the White House Press Secretary and the Attorney General. The reality, however, is that Trump has been explicit about his focus on, as written in one executive order, “transnational criminal organizations and preventing international ”Trump reinforced his focus on cartels in his speech to Congress, “I have further ordered the Departments of Homeland Security and Justice, along with the Department of State and the Director of National Intelligence, to coordinate an aggressive strategy to dismantle the criminal cartels that have spread across our Nation.”Not once did Trump mention marijuana in his speech. Nor have any of his executive orders mentioned marijuana. Clearly, Trump has never been one to hesitate to say what’s on his mind. So what makes people think he’s being coy about a crackdown on pot?Even though Trump’s Attorney General recently reiterated his position against pot, he likewise maintained a focus on the cartels and distribution networks, intentionally omitting any threats of a crackdown on marijuana. Admittedly, Sessions did say, “My best view is that we don’t need to be legalizing marijuana…” However, immediately turning toward enforcement, he said, “…and we need to crack down more effectively on heroin and fentanyl and other drugs.” Finally, speaking of his own responsibility as the head of the Department of Justice, Sessions added, “And part of the federal leadership will be drug distribution networks, cartels that threaten the very governments of nations to our south.”Again, like Trump, Sessions deliberately avoided saying anything about a crackdown on the states’ cannabis laws.

Second, a crackdown on the states that have legalized recreational marijuana would be wildly unpopular. The Trump administration is already suffering historically low approval ratings. With a mere 23% of Americans supporting a crackdown on the states that have legalized marijuana, Trump simply cannot afford to expend the political capital even if he was opposed to states’ rights on this issue. Attorney General Sessions, who is facing calls for his resignation over the Russian campaign scandal, is not faring much better. In short, engaging in a battle with the popular cannabis industry, according to Sam Kamin, professor of marijuana law and policy at the University of Denver, “would seem like an odd fight to pick at this particular political moment.”Meanwhile, the mass opposition to a federal crackdown extends to the state governments. Thus, a federal crackdown would not just be wildly unpopular, it would be met with considerable legal resistance. As Mike Riggs from OC Register put it, “If the Justice Department moves to revive the mid-2000s war on state-legal marijuana, they can expect a bigger fight than any presidential administration has ever seen.”

Third, Sessions has privately reassured other Republican senators that he did not intend to intensify enforcement on the states that have legalized recreational marijuana. “He told me he would have some respect for states’ right on these things,” said Republican Senator Rand Paul. “And so I’ll be very unhappy if the federal government decides to go into Colorado and Washington and all of these places,” he said. Regarding the crackdown, Paul added, “that’s not [what] my interpretation of my conversation with him was. That this wasn’t his ”

Winning the Battle for Weed

Unfortunately, the lack of a federal crackdown does not mean that marijuana will be legalized either. The good news, however, is that the media buzz around the possibility of a crackdown is helping to galvanize the forces for fighting against prohibition. In fact, on the face of it, it seems entirely possible that increased raids or “greater enforcement” by the federal government could be the very thing that pushes the nation to end cannabis prohibition once and for all.

But how will that happen?

It’s still not clear how exactly prohibition will end. In fact, there are a number of different possibilities, including the following (in ascending order of probability):

The DEA Could Reschedule. There has been a lot of attention focused on rescheduling within the DEA and, to a lesser extent, the FDA (the DEA allegedly bases their judgment on the research findings of the FDA). The DEA has the power to reschedule marijuana and DEA Chief Chuck Rosenberg claims to have “studied” the question last summer. The DEA, however, is probably the group that is the least likely to end marijuana prohibition—not just because it could reduce their budgets and threaten at least some of their jobs, but because the legalization of marijuana could, in time, as the numerous benefits of federal legalization become clear, lead to more fundamental questions about the failure of the war on drugs and the need for the DEA itself.

POTUS Could Write an Executive Order. There has also been considerable focus on the president rescheduling marijuana. In fact, the primary reason the marijuana stocks took a hit following the election (despite the sweeping victories across the states) is that Donald Trump was perceived to be less friendly toward cannabis than Hillary Clinton (The Marijuana Policy Project rated Clinton a B+ and Trump a C+). Nevertheless, the attention has not been unwarranted. Trump has repeatedly come out in favor of medical marijuana, he has also expressed support for states’ rights, and he could easily sign an executive order and effectively end reefer madness with the stroke of a pen.

The Federal Courts Can Chip Away at Prohibition. There has also been some focus on the courts among marijuana legalization proponents, and there have been a handful of cases that suggest the courts may end up playing a decisive role. The U.S. Supreme Court, for instance, refused to hear the case (by a 6-2 majority) of Oklahoma and Nebraska against Colorado, which effectively left Colorado’s legal cannabis market intact. In another decision, the 9th U.S. Circuit Court of Appeals ruled in August 2016 to prevent the Justice Department from prosecuting medical marijuana cases so long as there were no violations of state law.

The courts cannot reschedule marijuana, but they can strike down bad law, and a law (i.e. The Controlled Substances Act) that classifies marijuana as having “no currently accepted medical use” is obviously bad law (at least according to 44 states). In fact, U.S. District Judge Kimberly Mueller questioned the federal government’s designation of marijuana as a Schedule I drug and went as far as holding a hearing in 2015 to consider the issue. Unfortunately, Mueller ultimately decided, “this is not the court and this is not the time.” Perhaps next time will be different.

Congress Could Prevail. Finally, legalization advocates have also given considerable attention to the U.S. Congress. In fact, other than the states themselves, Congress is probably the best bet for ending pot prohibition.

In fact, Representative Dana Rohrabacher (R-CA) has already submitted a bill this session, Respect State MarijuanaLaws Act, that would end federal prohibition of cannabis in the states that have legalized it. Rohrabacher’s bill has 14 co-sponsors. Another Republican, Representative Thomas Garrett (R-VA), also recently introduced a bill, EndingFederal Marijuana Prohibition Act, which is similar to a bill introduced by Senator Bernie Sanders (D-VT) during the 2016 presidential campaign. Garrett’s bill also has bipartisan support.

What’s more, the current confusion around Attorney General Jeff Sessions’ recent remarks has already sparked a backlash from pro-cannabis lawmakers. On March 2, Senators Elizabeth Warren (D-MA) and Lisa Murkowski (R- AK)—along with 9 other U.S. Senators—delivered a letter to Attorney General Jeff Sessions which said,

“We respectfully request that you uphold the DOJ’s existing policy regarding states that have implemented strong and effective regulations for recreational marijuana use and ask that the Cole Memorandum remain in place. It is critical that states can continue to implement these laws under the framework of the Cole Memorandum.”

However, perhaps the best hope within the U.S. Congress comes from within the House of Representatives, where a bipartisan group of lawmakers—Dana Rohrabacher (R-CA), Don Young (R-AK), Earl Blumenauer (D-OR), and Jared Polis (D-CO)—have established the first ever Congressional Cannabis Caucus, which was created to develop “a rational approach to federal cannabis policy.”

When Congressman Blumenauer addressed the recent remarks of the Attorney General, he remained optimistic, “I never suggest that anybody be complacent, but I am absolutely convinced that this is a battle in which we will prevail.” And he sees the Cannabis Caucus as the vehicle for that victory. Regardless of the ongoing chaos in Washington, Blumenauer said, “…we aren’t going to allow this to get lost in the shuffle. That’s why we have the Cannabis Caucus, that’s why we are developing legislation, that’s why we are working with the industry.”

The States Could Force Legalization. Even if the Congressional Cannabis Caucus somehow fails to deliver, the states show no signs of backing down. In fact, according to Zoe Wilder of Merry Jane, another 14 states have policymakers actively working to legalize weed.

With 28 states now allowing medical marijuana, with another 16 states allowing limited medical marijuana (i.e. “low THC/limited use”), it is near impossible to fathom how marijuana can still be listed as having “no currently accepted medical use.”

Still, given the mounting evidence for the medical uses of cannabis, it seems reasonable to assume that all 50 states will allow some form of medical marijuana within the next few years. After all, there are only 6 states left that do not allow even “limited use” for medical purposes (Idaho, South Dakota, Nebraska, Kansas, Indiana, and West Virginia).